Inclusive basic education in south africa: issues in its conceptualisation and implementation

1 Lucyline Nkatha Murungi. LLB (Moi), LLM (UP), LLD (UWC). Research fellow at the Community Law Centre, University of the Western Cape. E-mail: nkatha.murungi@gmail.com. Parts of this Article are drawn from the author’s LLD thesis titled The Significance of Article 24(2) of the CRPD for Primary Education of Children with Disabilities: A Comparative Study of Kenya and South Africa which was submitted to the University of the Western Cape in May 2013.

2 S 29(1)(a) of the Constitution of the Republic of South Africa, 1996.

3 A 1 of the UNESCO World Declaration on Education for All (1990).

4 Coomans "In Search of the Core Content of the Right to Education" 226.

5 World Conference on Education for All: Meeting our Collective Learning Needs, held in Jomtien, Thailand (1990).

6 A 4 of the UNESCO World Declaration on Education for All (1990).

7 Coomans "In Search of the Core Content of the Right to Education" 226.

8 Ssenyonjo Economic, Social and Cultural Rights 377.

9 Ssenyonjo Economic, Social and Cultural Rights 377; Sloth-Nielsen and Mezmur Free Education. This interpretation is also adopted in UNESCO Revision of ISCED; and UNESCO Institute for Statistics ISCED 2011 31.

10 Verheyde Article 28 12.

11 Woolman and Bishop "Education" 57-11; Seleoane "Right to Basic Education" 224-225; Viljoen International Human Rights Law in Africa 549.

12 Roithmayr 2003 SAJHR 421-422; Veriava and Coomans "Right to Education" 62; Boezaart 2012 SAPL 456.

13 Woolman and Bishop "Education" 57-15.

14 Seleoane "Right to Basic Education" 228 argues that from the requirement under the South African Schools Act 84 of 1996 that education be compulsory for children between 7 and 15 years, it may be inferred that basic education is equivalent to primary education.

Woolman and Fleisch "Constitution in the Classroom" 113.

15 Woolman and Fleisch "Constitution in the Classroom" 130. Similar arguments are reiterated in McConnachie and McConnachie 2012 SAJL 129; and Simbo 2012 LDD 16.

16 UNESCO World Declaration on Education for All (1990).

17 DoE Education White Paper 1 ch 12 para 12.

18 DoE Education White Paper 1 ch 7 para 15.

19 South African Schools Act 84 of 1996 (SASA).

20 S 3(1) of SASA.

21 DoE Education White Paper 1 ch 7; Malherbe "Education Rights" 404.

22 Woolman and Fleisch "Constitution in the Classroom" 128; Seleoane "Right to Basic Education" 228.

23 Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC).

24 Centre for Child Law v Government of the Eastern Cape Province (ECB) unreported case number 504/10 of 2011; and Centre for Child Law v Minister of Basic Education 2013 3 SA 183 (ECG) respectively.

25 Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC).

26 Sloth-Nielsen and Kruuse 2013 Int'l J Child Rts 658.

27 Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC) para 40.

28 The Court’s reference to the CRC is in line with the Constitution of South Africa which, at s 39, calls upon the courts, tribunals, and forums to consider international law in the interpretation of the Bill of Rights, including the right to education. In addition, s 233 of the Constitution calls upon courts, when interpreting legislation to prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

29 Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC) para 43.

30 Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC) para 52.

31 A 24(1)(a) and (b) of the Convention on the Rights of Persons with Disabilities (2006).

32 DoE Education White Paper 6.

33 Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC) para 19-24; Ngwena and Pretorius 2012 SAJHR 88-89 argue that the National Strategy on Identification, Assessment and Support (SIAS) has been used as a tool of exclusion as opposed to a tool for the identification of individual specialised support needs.

34 Minister of Health v Treatment Action Campaign No 2 2002 5 SA 721 (CC); Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC).

35 CESCR General Comment No. 3: The Nature of States Parties Obligations (1990) para 10; Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997) para 9; Minister of Health v Treatment Action Campaign No 2 2002 5 SA 721 (CC) para 34; Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) para 32; Roithmayr 2003 SAJHR 403; McConnachie and McConnachie 2012 SALJ 564.

36 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) para 33.

37 Minister of Health v Treatment Action Campaign No 2 2002 5 SA 721 (CC) para 36-38.

38 Bekink and Bekink 2005 Stell LR 134.

39 Wakefield and Murungi "Domesticating International Standards on Education" 142; Beiter Right to Education 507.

40 Dakar Framework for Action: Education for All – Meeting Our Collective Commitments (2000).

41 UNESCO Expanded Commentary para 20.

42 See the further discussion below on WP6’s approach as well as the progressive realisation approach under the CRPD.

43 See for instance para 51 of CESCR General Comment No 13: The Right to Education (1999).

44 UNESCO Guidelines for Inclusion.

45 UNESCO Guidelines for Inclusion para 13.

46 WHO and World Bank World Report on Disability 209.

47 WHO and World Bank World Report on Disability 7.

48 WHO and World Bank World Report on Disability 209-210.

49 Salamanca Statement and Framework for Action on Special Needs Education (1994) (hereafter Salamanca Statement) para 2.

50 Salamanca Statement para 2.

51 Salamanca Statement paras 2, 3.

52 Salamanca Statement para 7.

53 Salamanca Statement para 18.

54 Standard Rules on Equalisation of Opportunities for Persons with Disabilities A/RES/48/96 (1993).

55 CESCR General Comment No 5: Persons with Disabilities (1994) para 35.

56 CRC General Comment No 9: The Rights of Children with Disabilities (2006) para 66.

57 Background documents of the seventh session of the AHC, ”Article 24 – education: comments, proposals and amendments submitted electronically” para 24.

58 WHO and World Bank World Report on Disability 226.

59 CRPD Concluding Observations: Spain CRPD/C/ESP/CO/1 (2011) para 43; CRPD Concluding Observations: Argentina CRPD/C/ARG/CO/1 (2012) para 38.

60 CRPD Concluding Observations: Spain CRPD/C/ESP/CO/1 (2011) para 43.

61 CRPD Concluding Observations: Argentina CRPD/C/ARG/CO/1 (2012) para 38.

62 CRPD Concluding Observations: China CRPD/C/CHN/CO/1 (2012) para 36.

63 Farrel 2000 4 2 IJIE 154.

64 A 24(2)(a) of the CRPD.

65 A 24(2)(a) of the CRPD.

66 OECD Review: South Africa 261.

67 OECD Review: South Africa 261.

68 Ngwena and Pretorius 2012 SAJHR 90.

69 DoE Education White Paper 6 25.

70 DoE Education White Paper 6 16.

71 OECD Review: South Africa 19; DoE Education White Paper 6 11; McConnachie and McConnachie 2012 SALJ 565.

72 OECD Review: South Africa 38.

73 DoE Education White Paper 6 25.

74 South African Schools Act 84 of 1996.

75 S 12(4) of SASA.

76 The SIAS defines ordinary public schools, full service schools and special schools as local ordinary schools, ordinary schools which are specially equipped to address a full range of barriers to learning in an inclusive education setting, and schools equipped to deliver education to learners requiring high-intensive educational and other support either on a full-time or a part-time basis, respectively.

77 Lomofsky and Lazarus 2001 CJE 304.

78 Engelbrecht 2006 EJPE 253-254, 256.

79 The Policy was based on the foundation of the Integrated National Disability Strategy White Paper of 1997 (Office of the Deputy President Integrated National Disability Strategy White Paper), which pioneered the shift from a medical to a social perspective on disability. Bekink and Bekink 2005 Stell LR 141.

80 Howell and Lazarus "Education White Paper 6" 26.

81 OECD Review: South Africa 68.

82 Howell and Lazarus "Education White Paper 6" 31.

83 NCSNET and NCESS Quality Education for All 11-51.

84 NCSNET and NCESS Quality Education for All 11.

85 NCSNET and NCESS Quality Education for All 11.

86 NCSNET and NCESS Quality Education for All 12.

87 NCSNET and NCESS Quality Education for All ii & 56.

88 DoE Education White Paper 6 17; OECD Review: South Africa 67; NCSNET and NCESS Quality Education for All 23-40.

89 DoE Education White Paper 6 18.

90 Howell and Lazarus "Education White Paper 6" 32.

91 Howell and Lazarus "Education White Paper 6" 31-32.

92 DoE Education White Paper 6 12, 38.

93 DoE Education White Paper 6 41.

94 DoE Education White Paper 6 22, 23.

95 DoE Education White Paper 6 37. The approach of WP6 to inclusive education is largely drawn from the Salamanca Statement, especially paras 8-10.

96 The fee debate is captured in Roithmayr 2003 SAJHR; Veriava 2007 SAJHR 180; Woolman and Bishop "Education" 57.

97 DoE Education White Paper 1 Part 5.

98 DoE Education White Paper 1 para 5.1.

99 DoE Education White Paper 1 para 5.19 (emphasis mine).

100 Progressive realisation means that concrete incremental steps are taken towards the fulfilment of the right in question.

101 Coomans "In Search of the Core Content of the Right to Education" 10; Ssenyonjo Economic, Social and Cultural Rights 389.

102 CESCR General Comment No 13: The Right to Education (1999) para 51.

103 Woolmal and Bishop "Education" 57-11; Viljoen International Human Rights Law in Africa 549.

104 Sloth-Nielsen and Kruuse 2013 Int'l J Child Rts 657.

105 Sloth-Nielsen and Kruuse 2013 Int'l J Child Rts 657.

106 Centre for Child Law v MEC for Education 2008 1 SA 223 (TDP) para 15.

107 S 28 of the Constitution.

108 It is argued that the guarantee of “basic" entitlements under s 28 of the Constitution is partly necessitated by the vulnerability of childhood. Currie and De Waal Bill of Rights Handbook 602-603; and Liebenberg Socio-economic Rights 233-234. Arguably, the significance of basic education for the full development of the child ought to be accorded similar protection.

109 S 36(1) of the Constitution.

110 See Liebenberg Socio-economic Rights 94; Currie and De Waal Bill of Rights Handbook 169; Woolman and Bishop "Education" 57-14; Boezaart 2012 SAPL 468.

111 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) para 71.

112 CESCR General Comment No 13: The Right to Education (1999) para 51.

113 Beiter Right to Education 516. The prospect of the immense responsibility of the state to implement the right to primary education immediately under the CRC triggered reservations to Article 28 from some states. See UN Treaty Collection 2014 http://treaties.un.org/Pages/View
Details.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en.

114 CESCR General Comment No 13: The Right to Education (1999) para 51.

115 Steiner and Alston International Human Rights 732; Reidel "Economic, Social and Cultural Rights" 144. Reidel also argues that whereas the application of the principles established in General Comments is voluntary, generally there is little opposition to the interpretations of the rights as espoused therein. Verheyde "Convention on the Rights of the Child" 90; and Verheyde Article 28 4, further emphasise the "great moral authority" of General Comments.

116 Rehman International Human Rights Law 86.

117 Such as Ssenyonjo Economic, Social and Cultural Rights 389; and Beiter Right to Education 48.

118 A 38 of the Statute of the International Court of Justice (1945) lists the sources of international law. According to a 38(d), judicial decisions and writings of publicists in various countries are subsidiary means of determining the rule of law.

119 During the drafting of a 24 of the CRPD, there were frequent references to the inclusion of a clause on the progressive realisation of the right to education. It was finally agreed that the clause on progressive realisation was better addressed in a general clause, which turned out to be the current a 4(2). See AHC 2005 http://www.un.org/esa/socdev/enable/rights/ahc6reporte.htm para 31, where the AHC noted that it was generally agreed that rather than qualify the obligations of the state in a 24, the issue of progressive realisation was to be dealt with in an earlier general provision that applied to the whole Convention including the Article on education.

120 A 4(2) of the CRPD.

121 AHC 2004 http://www.un.org/esa/socdev/enable/rights/ahc3reporte.htm para 38. According to the report, Kenya, Sierra Leone and Thailand proposed the inclusion of progressive realisation in a 17(1) (now 24(1)).

122 AHC 2005 http://www.un.org/esa/socdev/enable/rights/ahc6reporte.htm para 9.

123 The difficulty with differentiating obligations of an immediate nature from those that are subject to progressive realisation is the fact that many of the rights contain aspects of both. See Quinn "Short Guide to the United Nations Convention" 101.

124 The Ad Hoc Committee noted that a 24 draws on a 13(1) of the International Covenant on Economic and Social and Cultural Rights (1966) (ICESCR) and 29(1) of the CRC by selecting the aspects of both that are relevant to persons with disabilities. See UN date unknown http://www.un.org/esa/socdev/enable/rights/ahcstata24wgtext.htm fn 57; Byrne "Minding the Gap?" 432.

125 See generally CRC General Comment No 1: The Aims of Education – Article 29 (2001) in this regard.

126 The first sentence of a 24(2) states that "in realizing this right, State Parties shall…" The framing of this sentence is the clearest indication that the principles are a pathway through which the right as established in a 24(1) is to be achieved.

127 Dekker and Van Schalkwyk Modern Education Systems 6, 12; Van Schalkwyk Education System 72.

128 Nmehielle African Human Rights System 130 argues that the right to choice in education is often linked to the parental exercise of freedom of conscience and religion.

129 CESCR Report on the Eighteenth and Nineteenth Sessions 79.

130 Hodgson Human Right to Education 189; Beiter Right to Education 539. See for instance a 26(3) of the Universal Declaration of Human Rights (1948) (UDHR); a 5(1)(b) of the UNESCO Convention against Discrimination in Education (1960); a 13(3) of the ICESCR; and a 18(4) of the International Covenant on Civil and Political Rights (1966) (ICCPR).

131 A 29 of the CRC.

Directory: journals -> PER -> 2015
2015 -> Law's poverty jm modiri
2015 -> The universal jurisdiction of south african criminal courts and immunities of foreign state officials
2015 -> Book review international Law and Child Soldiers by Gus Waschefort1 ja robinson2
2015 -> "I am not a number! I am a free man!" The employment equity act, 1998 (and other myths about the pursuit of "equality", "equity" and "dignity" in post-apartheid south africa) part 2 am louw1 summary
2015 -> L du Plessis1 1 Introductory observations
2015 -> The regulation of market manipulation in australia: a historical comparative perspective
2015 -> The development of international law through the unauthorised conduct of international institutions
2015 -> Sa peté 1 Introduction